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Tymoshenko case appeal: all escape routes blocked?

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The case against Yulia Tymoshenko, former Prime Minister of Ukraine, created a stir in Europe and further afield. The conviction and prison sentence were greeted with outrage. Her appeal against the verdict is about to come to court, but will any judges be brave enough to stand up for her rights? Natalia Sedletska thinks it unlikely.

Natalia Sedletska
13 December 2011

In October 2011 Judge Rodion Kireev of the Kyiv Pechersk Court handed down his verdict in the case of the state vs the former Prime Minister of Ukraine, Yulia Tymoshenko. She was being tried on charges of exceeding her authority in a 2009 gas deal with Russia and squandering state funds. The outcome of the trial was never really in doubt, although the case had made considerable waves throughout Europe. 

The sentence was seven years of imprisonment with a further three-year ban on occupying any position in government. Tymoshenko promptly filed a complaint with the Kyiv Court of Appeal, but any romantic hope that she might be acquitted and released was just that – pure romanticism. The state will brook no attempts to change the ending it has prescribed for this particular script and is currently making careful preparations for the appeal hearings.

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Ukraine's former PM has already spent 5 months behind bars. Neither protests in the country nor appeals from the international community have restored her freedom. It would seem that President Yanukovych is prepared to risk international condemnation in order to destroy his main political opponent and rival.

Everything possible is being done to block off all escape routes. There had, for instance, been talk of decriminalising the article under which she was tried, but this failed miserably in a recent parliamentary vote.

Tymoshenko is now beginning her fifth month of imprisonment in the Lukyanivka remand prison, where she will stay until her appeal is not upheld and the court verdict comes into effect.

The Appeal Court: what happens when the judges overstep the line?

The Appeal Court judges are currently discovering what happens when they overstep the line and behave too independently. In July 2011 Judges Lyaskovka, Kuzmin and Zhuravl released from custody two former officials from the Tymoshenko government: Anatoliy Makarenko, ex-head of the State Customs Service, and Taras Shepitko deputy head of Kyiv Regional Customs Service.

'The state will brook no attempts to change the ending it has prescribed for this particular script and is currently making careful preparations for the appeal hearings. Everything possible is being done to block off all escape routes.' 

They had been convicted of illegally clearing natural gas through the customs, thus causing huge financial damage to Ukraine, and had already spent more than a year in prison.

The fact that they were released in open court and in full view of the press emphasised that the judges considered their imprisonment unlawful. The legal community rose up against such arrogance and freethinking, determined that it should not go unpunished.  Now each judge is facing the possibility of being dismissed. The Chairman of the Appeal Court filed a complaint with the Supreme Council of Justice stating that, in liberating the ex-officials, his colleagues were guilty of breaking their oath.

The Supreme Council

The Supreme Council of Justice is the institution that approves the appointment and dismissal of judges. It is composed chiefly of government officials and has few representatives of the legal profession among its members. Recently the Council has been behaving more like a court of inquisition, demonstrating the extent to which Ukrainian judges are kept on a very tight rein.

The penalties for breaches of discipline are: a warning, demotion and, finally, dismissal. If a judge is dismissed for breaking his oath, he is barred from the profession forever. All the Appeal Court judges will certainly have this fact at the forefront of their minds and there is, therefore, little or no chance that any one of them will be prepared to stick his neck out by demonstrating too much independence.

The Appeal

So who will be hearing Tymoshenko’s appeal? Under Ukrainian law, judges are assigned randomly (by computer) to court cases. Just before Tymoshenko’s case was due to come up for consideration, the Appeal Court suddenly moved the goal posts: the number of available judges was narrowed down by the introduction of a new system assigning judges to cases on the basis of city districts. Now only eight judges can hear appeals filed against the decisions made by the Pechersk District Court in Kyiv.

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Judges Lyaskovska, Kuzmin and Zhuravl of the Appeal Court in Kyiv made a bold decision to release two former officials from Yulia Tymoshenko cabinet: Anatoliy Makarenko, ex-head of the State Customs Service, and Taras Shepitko deputy head of Kyiv Regional Customs Service. The judges did not have to wait long for the consequences of their independent verdict: they may soon see themselves removed from the judiciary.

Three of these judges have now been named. Until six months ago Ludmila Osipova, Irina Horb and Oksana Pavlenko sat in the Shevchenko District Court, considered by the authorities to be the most pro-government.  On the very eve of the appeal hearings, presiding judge Iryna Horb was substituted by Olena Sitaylo. This young judge was moved to the Court of Appeal from the Shevchenko District Court only six month ago.

Appeal cases are highly specialised and the part played by the judge differs considerably from his role in a court of primary jurisdiction. At first sight, the assignment of inexperienced judges to a case which has created such a stir in Europe seems a strange choice, but it will presumably be easier for them to deliver the outcome planned by the authorities.

If the appeal is thrown out, Kireev’s verdict will be upheld and Tymoshenko will be transferred to prison to start her seven-year sentence. She will almost certainly appeal to the Specialised Supreme Court of Ukraine, the cassation court for criminal and civil cases. This court is headed by Leonid Fesenko, who for some time combined this job with his role as a parliamentary deputy from the Party of the Regions. His past behaviour makes it clear that he will certainly not go against party policy, so there are no surprises to be expected from him.

There is, however, still one more court, the highest in the country, to which Yulia Tymoshenko can appeal. This is the Supreme Court of Ukraine, currently the scene of a running battle.

The Supreme Court: tightening the screws

Until the autumn of 2011 the chairman of the Supreme Court was a Tymoshenko ally, Vasyl Oponenko. His term of office has come to an end, but he retains the support of the Supreme Court judges and it is they who must elect his successor. 

Pro-government legal circles would like to see Anatoly Golovin, currently chairing the Constitutional Court of Ukraine, as their candidate for the vacant position of Supreme Court Chief Justice. The government is determined that Oponenko shall not be re-elected for a second term and has launched a full-scale campaign to ensure that this does not happen. To this end, the Supreme Council of Justice seems to have joined forces with the authorities to bring to heel the wayward Supreme Court, the only institution in Ukraine which can put a stop to any litigation in the country.

'The government is using all the means at its disposal, including intimidation and criminal prosecution, to put pressure on the judiciary, which should be completely independent.'

But the Supreme Court judges turned out to be unexpectedly strong-minded, so the Prosecutor General’s office started tightening the screws. Now one of the judges, Mykola Korotkevich, is facing criminal proceedings and four more judges are under threat of dismissal for breaking their oath. Will it be possible to convince the Supreme Court judges to choose the ‘right’ chairman now that they are threatened with criminal prosecution? This is, of course, a rhetorical question.

The government is using all the means at its disposal, including intimidation and criminal prosecution, to put pressure on the judiciary, which should be completely independent. Unlike her ancient namesake, the Ukrainian Lady Justice (Justitia) has put her scales to one side and taken off her blindfold of impartiality. She is looking around in fear.  It has come to this: even she is afraid.

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